NY appeals court to consider local fracking bans

ALBANY, N.Y. 
A state appeals court was to hear two cases that pit the right of towns to control land use through zoning against the drilling industry and landowners who say state law trumps local authority when it comes to oil and gas development in New York.

In the last few years, more than 50 New York municipalities have banned gas drilling and more than 100 have enacted moratoriums on drilling activities. The bans stem from local residents' concerns about potential adverse impacts if the state lifts its 5-year-old moratorium on gas drilling using high-volume hydraulic fracturing, or fracking, which frees gas from deep shale deposits by injecting wells with chemical-laced water at high pressure.

Trial-level state Supreme Court judges have upheld bans that were challenged in the rural central New York towns of Dryden and Middlefield. Appeals of those decisions will be argued Thursday in the mid-level Appellate Division. A decision is expected in about six weeks.

Earlier this month, another local Supreme Court judge upheld a challenge to a drilling ban in the Livingston County town of Avon.

The town board in the Tompkins County town of Dryden, 40 miles southwest of Syracuse, voted unanimously in August 2011 to amend the zoning law to ban gas drilling. The action followed months of impassioned public debate initiated by a petition signed by hundreds of residents asking for a ban on fracking.

Six weeks after the ban was enacted, the town was sued by Denver-based Anschutz Exploration, which had gas leases in the town. When the company declined to pursue an appeal of a judge's ruling upholding the ban, another drilling company, Norse Energy, stepped in to appeal.

In the Middlefield case, dairy farmer Jennifer Huntington, owner of Cooperstown Holstein, is appealing the ruling of a state Supreme Court judge in Otsego County upholding the town's drilling ban. Huntington said the ban blocks her from reaping the economic benefits of gas drilling on her farm.

At the heart of the cases is the interpretation of a state law passed in 1981 that says regulation of the oil and gas industry rests solely with the state Department of Environmental Conservation, which "supersedes" local laws and ordinances.

"Our argument is that the towns of Dryden and Middlefield are not trying to regulate the industry; they recognize that regulating the industry is a matter for the state," said Deborah Goldberg, an attorney for the environmental group Earthjustice. "But the town of Dryden is exercising its constitutionally protected local power to regulate land use through zoning."

Goldberg, who is representing Dryden, argues that the state's highest court, the Court of Appeals, ruled in a case known as "Frew Run" that a law regulating the mining industry did not pre-empt local zoning even when that zoning banned the industry from within town borders.

Tom West, who represents Norse in the challenge to Dryden's zoning law, said he'll argue that the Frew Run case, which involved a gravel mine, doesn't apply because the state mining law is fundamentally different from the oil and gas statutes.